Wednesday, September 2, 2015

The Equity Grievance Policy and Freedom of Speech

Patrick Crotty
Associate Professor of Physics and Astronomy

Ever since an international student accused of dating violence was allegedly held prisoner for several days by administrators and Campus Safety [1], there has been a great deal of debate at Colgate about whether the Equity Grievance Policy (EGP) adequately respects the due-process rights of those charged with violating it. There has, so far, been much less attention paid to another aspect of the EGP that is at least as troubling: it directly threatens the free-speech rights of both students and faculty.

There is significant national concern over the erosion of free speech on American college campuses [2], and there have been several recent, highly-publicized cases of students and professors' getting hauled before university administrators to answer for speech clearly protected by the First Amendment [3, 4]. Many of these cases involved overly broad anti-harassment policies that were too easily used to punish unpopular, controversial, or insensitive, but not harassing, speech. As it is presently written, the EGP could one day be misused in the same way. We needn't stop talking about the due-process issue, but we should start talking about this one too and demand that the EGP be revised to protect freedom of speech and expression to the maximum extent possible.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan organization which advocates for civil liberties in American academia [5]. (I have low-level involvement with FIRE; disclosure statement below.) FIRE maintains a list of several hundred colleges and universities and rates each according to how well its official policies protect freedom of speech on campus [6]. The highest rating, Green, means that the policies are generally consistent with freedom of speech. Yellow means the policies pose a mild to moderate risk to it (for example, because of inadequate definitions). And Red, the lowest rating, means that the policies “clearly and substantially” violate freedom of speech.

Green ratings are, sadly, rare. The ratings for the top-ranked liberal arts colleges are split about evenly between Yellow and Red [7]. Colgate's is Red [8]. The reason FIRE gives for our Red rating is Section III.B of the Equity Grievance Policy, which defines and prohibits “harassment.”

There is of course nothing inherently wrong with having a policy against harassment – indeed, as a college receiving federal funds, we are legally required to have one. Moreover, as a private college, we are not legally required to respect the First Amendment rights of students and faculty. But our fundamental purpose as an academic institution is to promote critical, well-informed thinking, for which – as famously argued by John Stuart Mill – maximum freedom of speech and expression are absolutely essential. The term “harassment” should therefore be officially defined so as to restrict these as minimally as possible.

Fortunately, such a definition was provided some years ago by the Supreme Court (discussed more in [2]). In its opinion for Davis v. Monroe County [Georgia] Board of Education (1999), a case involving the sexual harassment of an elementary school student by a classmate, the Court defined sexual harassment in an educational setting as:

“[B]ehavior. . .so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.” [9]

The applicability of this formulation to racial, homophobic, and other forms of harassment is obvious, and many colleges and universities have adopted it for their own harassment policies. But it is important to note that under the Davis standard, these elements – deliberate, severely offensive behavior targeted at specific individuals; pervasiveness (i.e., the practical inability of victims to avoid or ignore the offending behavior while still receiving the education they are entitled to); and objective offensiveness (meaning any “reasonable person” in the position of the victim would also be offended by the behavior) – must all be present for harassment or (equivalently) the creation of a hostile environment to take place. Otherwise, it may be offensive, but it is not harassment by the legal definition.

The Equity Grievance Policy does not adequately distinguish harassment from merely offensive speech or behavior (referred to henceforth as just “offensive speech”). More ominously, it explicitly allows for unspecified administrative action even when legally-defined harassment is not taking place. While all of the Davis elements are mentioned in the policy [10], it also contains the following clause, the final sentence of which is specifically cited by FIRE:

“Colgate encourages individuals experiencing or witnessing offensive behavior to make a report as early as possible so as to have the situation corrected before it reaches the level of a hostile environment. Individuals with a concern need not worry about whether the behavior is sufficiently serious to constitute a hostile environment. Colgate may, and in the appropriate circumstances will, take action to respond to offensive behavior even if the behavior does not rise to the level of a hostile environment within the meaning of the law.” (my emphasis)

While the policy does go on to say “[t]he fact that a person was personally offended by a statement or incident does not alone constitute a violation of this policy,” it is completely unclear what would constitute “appropriate circumstances,” what “action” Colgate might take, and whether the “response” would include any formal proceedings or disciplinary action against the offender. The document outlining the Equity Grievance Process [11] does not provide obvious answers to these questions either.

The drafters of the Equity Grievance Policy may not have intended this clause as a loophole to allow the suppression of offensive but non-harassing speech, but in effect it is exactly that, as FIRE recognizes. The mere fact that someone took offense won't necessarily get you in trouble, and presumably the offensive speech must be along the lines of the examples listed in the policy, e.g., “displaying racially, ethnically, religiously offensive pictures, symbols, cartoons, or graffiti.” But otherwise, it is impossible to tell from the policy where the limits of acceptable speech lie.

What, for example, would happen to someone who was displaying a racially, ethnically, or religiously offensive picture or symbol in his dorm room or office, but wasn't actually harassing anyone per the legal definition? In the absence of Davis-like standards, what determines the threshold at which the “totality of circumstances” such as “effect or impact on the individual and the learning community” results in administrative “correction”? How would people displaying pictures or symbols that might be considered offensive be able to judge their risk of being charged under the EGP?

Without answers to such questions – and because policies outlast administrations, any answers must be clearly stated in or inferable from the policy itself – this clause erects a Kafkaesque disciplinary system in which anyone could report anyone else for, within very broad guidelines, being “offensive,” and the offender find him- or herself subject to official “correction” via processes, standards, and penalties that are largely left to the imagination. The resulting threat to freedom of speech (as well as due process) at Colgate should be self-evident. A policy so vague about what people are allowed to say deeply chills public discourse: students and faculty are forced to walk on eggshells and sanitize every utterance for fear of crossing some invisible line and getting suspended, expelled, denied tenure, or fired. Such an environment is toxic to the robust debate and free inquiry on which the intellectual growth of both students and professors depends. Just the possibility of being summoned for a chat with a dean will intimidate many people into self-censorship. And it is hardly difficult to imagine some future administration using this loophole to shut down “offensive” critics, or to enforce whatever political ideology is currently dominant.

After all the troubles of the past few years, why would we grant any administration this kind of seemingly arbitrary power to police our speech?

The only solution that is consistent with freedom of speech and Colgate's mission is to remove the problematic clause from the Equity Grievance Policy entirely, or at least have it state unambiguously that no one will face any kind of administrative intervention for anything they say as long as it doesn't fall into the very few categories of speech – harassment (as defined by the Supreme Court), making credible threats of violence or suicide, shouting down an invited speaker, etc. – that directly violate someone else's legal rights or trigger the legal duty of the university to respond to imminent danger, or that directly and seriously disrupt Colgate's normal operations. There should be a high bar for determining whether to proceed to initial hearings after a complaint.

Our campus climate is a major concern, and there are any number of non-coercive measures Colgate can, and should, take to improve it. There's nothing wrong with encouraging people to be sensitive to other people's feelings, because offensive speech does carry undeniable emotional and social costs. But forcing people to be sensitive to other people's feelings, especially at an academic institution that in principle places supreme value on the life of the mind, always costs a great deal more in the long run.

Disclosure and Disclaimer:

Before writing this post, I discussed the reasons for FIRE's Red free-speech rating for Colgate over email with Samantha Harris, FIRE's Director of Policy Research. The opinions expressed here should be taken as mine and not hers or FIRE's (nor Colgate's, nor the AAUP's). I am a faculty member of the FIRE student network, and in graduate school I was part of a group of student activists FIRE supported in a website censorship dispute with the administration. I have never held any kind of official position with FIRE, and I had no involvement with or input into its Red rating for Colgate.

The above post does not necessarily reflect the opinion of the AAUP membership or that of its officers, nor does inclusion of the post on this website constitute an endorsement by the Colgate chapter of the AAUP.

6 comments:

Aaron Robertson
said...

Patrick,

Thank you for writing this and make such a cogent argument. The harassment statement came through SAB back in 2008 when I was on it. It was crafted by former Dean of Students Charlotte Johnson. I made very similar objections back then but was told that we wouldn't be voting on it nor changing it (it was just an FYI). This is how she made many (terrible) changes when she was dean. This is yet again an example of an administrator not heeding faculty, departing Colgate, and leaving the faculty with a mess that lingers.

Professor Crotty, I get the feeling you’re not gonna be the most popular fella in the room at the faculty mixers this semester…

Although it hasn’t yet received much news coverage, it should not be lost on anyone that just days ago Colgate was slammed with yet another lawsuit. Now comes yet another indictment of the Office of Equity and Diversity and the Equity Grievance Panel. Once again yet another male student allegedly roughed up and railroaded, and more accusations of egregious violations of due process. Curious readers can easily find the story through a simple Google search; more enterprising souls can access and read the actual complaint.

Ms. Rugg and Ms. Flack, the authors of that diversity report cited a few months ago on this very blog, are named as defendants.

Clearly, something rotten is afoot in Hamilton. Ms. Rugg and Ms. Flack, I’m sure Colgate’s legal eagles have advised you to clam up. Be assured, however, of this: if it hasn’t sunk in yet, we’re living in the age of the internet, social media and instantaneous information. If you’re up to something unsavory – if you’re overseeing a deeply flawed or rigged disciplinary process, or worse, leveraging your positions for the flagrant abuse of students – the truth will emerge. And that truth will be broadcast far and wide…quickly. The 1980s this ain’t. You can no longer count on operating with impunity within the cloistered confines of the tiny, isolated rural campus, thinking that it provides you cover. Your actions have spawned two different lawsuits, and frankly, it’s embarrassing. If what is alleged is true, may the consequences for you be swift and appropriate, your diversity crusading be damned.

Colgate is at a crossroads: either get this problem under control, or be consumed by it, to the great detriment of the university.

Let’s speak plainly, and not obfuscate with annoying academic-speak: it is time for Colgate to reign in those responsible for the decades-long obsessive hand-wringing over diversity, this latest inane descent into nonsensical rambling over covert, “unaware” racism, and the apparent out-of-control kangaroo court atmosphere that has taken hold. What a tremendous waste of time, energy and resources. When does it end?

A much more useful exercise would be a return to reason, and a rediscovery of some of the fundamentals that have been lost at Colgate, such as rational discourse, due process, student rights and freedom of speech and association.

Adding to Anonymous' comments above, not only is there another lawsuit against Colgate as a result of the EGP, the federal Office of Civil Rights has also opened an investigation into alleged racial discrimination by the Office of Equity and Diversity. While it may be tempting to wallow in the irony of the situation, this is in fact a serious issue that needs to be addressed by those with the power to do so. Students are being abused (how else can locking one in a basement be characterized?), we have indeed set up some kind of kangaroo court (the outcome of the hearing for the imprisoned student was announced to a faculty member, the "alleged victim" and her parents before it happened; add to this the new lawsuit alleges the EGP panel did not fulfill its obligations even under the low "preponderance of the evidence standard"), the speech restrictions are worrying, as Prof. Crotty points out - all this is harming our community and our reputation.

Watching Lyn react so angrily to Nina's questions and basically refuse to answer her at the faculty meeting last Monday, I knew something was wrong. And the idea that revealing just the number of men of color involved in EGP hearings would somehow break confidentiality is absolutely ludicrous. Really makes me wonder what they're hiding....

The recently published issue of the AAUP Journal of Academic Freedom has an interesting article on this topic by Richard Hanley. Hanley argues that, while the Office of Civil Rights has a position that is "coherent, rational, and even sensible," this position is misunderstood by many in ways that lead to real threats for academic freedom. It's worth a read at http://www.aaup.org/reports-publications/journal-academic-freedom/volume-6-2015/title-ix-sexual-harassment-and-academic

A leading feminist law scholar, Nadine Stossen, criticizes the OCR's interpretation of sexual harassment, upon which EGP policy is based, for endangering free speech. Useful reading: http://www.theatlantic.com/politics/archive/2015/10/sexual-harassment-academic-freedom/411427/?utm_source=SFTwitter